R. v. Enns, 2021 NSSC 270

SUPREME COURT OF Nova Scotia Citation: R. v. Enns , 2021 NSSC 270 Date: 20210927 Docket: 482274 Registry: Halifax Between: Her Majesty the Queen v. Christopher Enns CHARTER APPLICATION REGARDING THE MELLOR COURTHOUSE AND COVID RESTRICTIONS Judge: The Honourable Justice Joshua Arnold Heard: June 15, 16 and 17, 2021, in Halifax, Nova Scotia Counsel: Len MacKay and Scott Millar, for the Federal Crown Gordon Allen and Jack Lloyd, for Christopher Enns By the Court: Overview [ 1 ] Christopher Enns is charged with possession of Cannabis (Marijuana) and Cannabis (Resin), along with possession of proceeds of crime.

His jury trial is scheduled for September 6 - 26, 2022, at a new courthouse recently constructed on Mellor Avenue in Dartmouth for the purpose of accommodating jury trials during the COVID pandemic. [ 2 ] The new courthouse is situated in a large low-rise “strip mall”-type complex in the Burnside Industrial Park. This complex houses a number of other businesses and organizations, one of which is the Halifax Regional Police (“HRP”). The HRP Mellor Avenue detachment is identified by large signage. Mr.

Enns says the Mellor Courthouse threatens his fair trial rights because of its proximity to a highly visible HRP detachment and its large sign. [ 3 ] Mr. Enns proposes to call two witnesses to provide expert opinion evidence, Dr. Nikolay Kovalev and Dr. Veronica Stinson. The Crown objects to their qualifications. If they are qualified, the Crown says, their testimony should receive very little weight. In any event, the Crown says that Mr.

Enns’s application has no merit. [ 4 ] Due to time restrictions and the back-up of cases in our region because of the COVID pandemic, I heard the qualification voir dires , along with the (proposed) viva voce evidence of each expert, before a ruling on qualifications. Counsel agreed that I should provide my ruling with regard to qualifications, the parameters of each witness’s evidence (if any), and my decision on the Charter voir dire , at the same time. [ 5 ] This is my decision on all of those issues.

The Application [6] On May 7, 2021, less than one month before his trial was scheduled to commence, Mr. Enns gave notice of the Charterapplication now before the Court. An amended application followed on May 18. After citing ss. 7 and 11(d), the amended applicationwent on to describe the “legal grounds” for his application: 3. Where there is a probability of impartiality or prejudice in the locality where a jury is located and where a courtroom is located, it isappropriate that the venue be changed – R. v. Izzard (1971), (NS SC), 14 CRNS 249 NSTD, Regina. 4. A basic tenant [sic] of our legal system as protected by

section 7 and is specifically enumerated in 11(

d) is impartiality regarding theadministration of justice trier of fact and presumption of innocence, and a fair proceeding. Courts have consistently determined thatcircumstances whereby court officials, including police which are part of the administration of justice, would be in a position wherebythere is and could be contact with the jury, due to the location of the courthouse or venue is something that affects the appearance offairness can be sufficient to quash a conviction – R. v. Cameron (1991) 64 CCC 3(d) 96 (Ont CA); R. v. Masuda (1953) (BC CA), 106 CCC 122 BCCA; R. v. Nash

(1949) Carswell NB 7; 5. The setting of the courtroom and location of the courtroom and proceeding in this location where this jury trial is set creates areasonable apprehension of bias in the eyes of the accused and looks to the extent that it violates a basic tenant [sic] of our legal systemand thus is captured by

section 7 of the Charter as well as it may impact the presumption of innocence and it could affect theimpartiality of the jurors and how the accused is perceived. R. v. Moneyas 1995 Carswell ALTA 2995. State v. Jaime Supreme Court ofWashington, En Banc, May 27, 2010. R. v. Afghanzada, (2001) 149 CCC 3(d) 349 (Ont CA). 6. An impression of bias affecting fairness of the trial and the public perception of the accused and indeed possibility of interactionbetween police and jurors and other court officials creating a sufficient objective and impression of bias affecting fairness – R. v.

Mayhew (ON CA), 1975 Carswell Ont 11. 7.The proximity of the court location to a Halifax Police office at 7 Mellor Avenue could act as a barrier and or deterrent to some fromattending and could impact the jury pool R. v. Francis, 2007 NSSC 108. 8. Public Health measures and restrictions and the provincial declaration of emergency during Covid-19, and the pandemic could limitthe jury pool in a way that contributes to bias and affects the fairness of the trial in violation of

section 7 and 11(

d) of the Charter. R. v.Francis, 2007 NSSC 108. 9. The Public Health restrictions and Declaration of the State of Emergency and issues of acting as a juror during the pandemic, affectsthe jurors ability to properly discharge their duties and fully perform their function leading to bias and also affecting fairness of trial andimpacting on the impartiality of the juror and the accused’s presumption of innocence, thus impacting the applicant’s right to a fair trialas guaranteed by the Charter 11(d). [7] According to the amended notice, Mr.

Enns requests a remedy under s. 24(1) of the Charter: either a stay of proceedings or adeclaration that the trial cannot proceed until the pandemic state of emergency has ended, in another courthouse. As noted above, theCrown says the application has no merit. Following a Crown Vukelich application, I dismissed the aspect of Mr. Enns’s applicationwherein he claimed that by holding a jury trial during the Covid-19 pandemic, the resulting state of emergency and the lockdownrestrictions as they existed at the time, would infringe his ss. 7 and 11(

d) Charter rights by limiting the jury pool and causing juror bias(R. v. Enns, 2021 NSSC 203). This decision deals with the remainder of his Charter application. Proximity of the HRP Detachment to the Mellor Courthouse [8] As a member of the Supreme Court of Nova Scotia judiciary, I am familiar with the Mellor Courthouse and conducted thishearing in that courthouse.

I take judicial notice of the following facts: • The Mellor Courthouse is located in a low-rise complex in the Burnside Industrial Park that houses a number of other businessesand entities, and which is collectively the length of a city block; • The public entrance to the courthouse is located on Mellor Avenue. The public enters directly from the parking lot.

The mainentrance is on the short side of the courthouse; • Mellor Avenue is a short street that does not appear to have heavy traffic; • If one is facing the public entrance to the courthouse, the only other visible entity is a business establishment, Mackay Marine,located to the right of the courthouse entrance. It has an overhead sign affixed to the side of the building, as do all of the occupants ofthe complex. The public enters the marine supply store directly from the parking lot.

There is currently an empty unit to the right ofMackay Marine, identified by an overhead “For Lease” sign; • The bulk of the complex faces Wright Avenue, a busy thoroughfare in Burnside. A person walking around the courthouse fromMellor Avenue sees the complex to the left, with the long side of the courthouse facing Wright Avenue.

Immediately adjacent to the rearof the courthouse, to the left, is a computer software company, which has a sign attached to the face of the building and an entrancedirectly from the parking lot; • To the left of the software company is a Halifax Regional Fire and Emergency office, which also has its own entrance from theparking lot, and its own sign attached to the face of the building; • To the left of the Fire and Emergency office is the Halifax Regional Police detachment. Like the other occupants of the complex,the HRP detachment has a separate entrance directly from the parking lot.

It has a massive sign attached to the face of the buildingfacing Wright Avenue;

• To the left of HRP is the Nova Scotia Health Authority, which has its own large sign attached to the face of the building and its own independent entrance. • Signage saying “Nova Scotia Supreme Court” is located near the road in a buffer area between Wright Avenue, the sidewalk along Wright Avenue, and the parking area for the complex. There is a large parking lot between the sign and the complex. The HRP sign can be seen on the side of the building by a person looking toward the courthouse sign near the road; • The main entrance to the courthouse also has a sign that says “Nova Scotia Supreme Court”.

The HRP sign cannot be seen from the main entrance. The experts [ 9 ] Mr. Enns proposes calling Dr. Nikolay Kovalev and Dr. Veronica Stinson to provide expert opinion evidence. Both proposed witnesses testified on direct and cross-examination on their qualifications and on the content of their opinions. Dr. Nikolay Kovalev [ 10 ] Dr. Nikolay Kovalev is an Associate Professor of Criminology at Wilfrid Laurier University. He holds a Ph.D. in Law from Queen’s University Belfast. He is a member of the Ontario Bar.

In his report he describes himself as a “socio-legal scholar in the field of jury research”, with a particular focus on comparative jury systems. Mr. Enns requests that Dr.

Kovalev be qualified as an expert able to provide opinion evidence regarding “jury trials, comparative jury systems, the history of jury courts and the analysis of how a jury functions, including factors that may affect jury participation and factors that affect perception of the administration of justice and roll [sic] of the courts.” [ 11 ] Based on a viewing of a selection of photographs provided by applicant’s counsel – which, notably, did not include photographs of the entrance to the Mellor Courthouse – Dr.

Kovalev offers the following opinions in his report: 10 … the fact that the Halifax Regional Police station and Nova Scotia Supreme Court share the same building could affect some jurors’ ability to adjudicate criminal matters objectively and impartially. I also think that the Halifax Regional Police office being adjacent to or in close proximity to the Courthouse, could cause some members of the public and, potentially, jury members to confuse the role of the court as a neutral arbiter of facts and issues in a legal dispute and in particular, Mr.

Enns’ trial. 11 Some jurors could perceive that the police and the court are elements of the same criminal justice agency and are not independent from each other. Some members of the Halifax community could have doubts about the role of the court is an independent and impartial institution vis a vis the Halifax Regional Police. In other words, the location of the court next door to the regional police office undermines the perception of independence and impartiality of the court. [ 12 ] Dr.

Kovalev’s report describes the evolution through the nineteenth and twentieth centuries of the expectation that courthouses should be physically located away from other elements of the justice system, such as jails and police stations. He cites literature on courthouse architecture that recommends physical separation of prosecution and defence counsel, as well as separation from police stations, in order to avoid appearances of favouritism. By way of illustration, he refers to a 2021 trial in Russia that was held in a police station. [ 13 ] Dr.

Kovalev further opines that the proximity of the courthouse to the police station makes it “probable” that some Haligonians, particularly Indigenous and African Nova Scotians, will be deterred from jury duty. Based on social science literature (including the “Wortley Report” on relations between the police and the African Nova Scotian community in HRM), he states that “people who have negative experience with the police would be even more reluctant to serve on the jury if the jury trial is conducted in close proximity to the HRP office”. In Dr.

Kovalev’s view, such individuals would likely try to avoid jury service in order not to be made to feel anxious due to the proximity of a police station, with police cars in the parking lot, and the presence of police officers. [ 14 ] Dr. Kovalev suggests that the location of the Mellor Avenue courthouse is consistent with a “crime control” approach to criminal justice, rather than a “due process” model.

He described the two models as follows in his evidence: So, in a due process model, you’re concerned about the rights of the accused, defendant, and you try to provide safeguards so the, you know, the court will appear as impartial and independent. Under the crime control model, it doesn’t really matter what, how the court will be perceived, as long as you convict all the guilty defendants you achieve that purpose. [ 15 ] Dr. Kovalev’s testimony was consistent with his report.

In keeping with the overall tenor of his testimony, his evidence concluded as follows: Q. …Do you feel at all that this, what we’re seeing here, is contrary to the trends of the 20 th century in trying to separate branches of the administration of justice due to fears of favouritism, which you referred to earlier in your testimony? A. Well, to be honest with you, when you…when you told me about this location, I couldn’t believe it. I…I was surprised and then I…I realized that this is the…this is the brand-new building.

I wouldn’t be surprised if this building was built, let’s say, in the 19 th century or 18 th century or even beginning of the 20 th century but, given the fact that, you know, the police… – to decide to put the courthouse next door to the police station was very, very surprising to me and I wouldn’t be surprised, you know, if it happens somewhere in a third world country, but Canada is one of the examples of the…you know the best country in terms of human rights record. I was…I was a bit concerned and…and couldn’t believe it, to be honest with you.

So, yeah, I think…I think it’s really, I’m not in the position, sort of, to say what was the process, how the, you know, whether there was a business plan, who consulted, but certainly it’s kind of raising many questions – how this decision was made by the government of Nova Scotia or Halifax. So, certainly, it’s a kind of a very, very interesting and concerning precedent. And I’m not aware of any other new building in Canada which would look like this.

Dr. Veronica Stinson [ 16 ] The second proposed expert, Dr. Veronica Stinson, is a Professor of Psychology at St Mary’s University. She holds a Ph.D in Psychology from Florida International University, and has experience as a litigation consultant dealing with jury issues in the United States. The applicant seeks to qualify Dr. Stinson as “an expert regarding jury deliberations, factors that can impact a jury’s objectivity and willingness to serve.” [ 17 ] Dr.

Stinson’s proposed report addresses the following question: “Whether the location of the new Burnside courthouse, adjacent to Halifax Regional Police and the Public Prosecution Service, could create a psychological barrier for some Nova Scotians to fulfill their civic duty as jurors and could jeopardize the representativeness and impartiality of the jury.” Based on social science literature on systemic racism and the effect of diminished trust in the justice system (such as the Wortley Report), she offers the opinion that the proximity of the HRP detachment to the courthouse leads to an increased probability (although at times she agreed with the lower standard of “possibility”) that some members of the jury panel will be confused about the respective roles of police and the courts.

She indicates in her report, and testified similarly, that given the distrust felt by many Indigenous and African Nova Scotians towards the police, the proximity of the court and the police detachment “may confuse some prospective jurors about the relationships among the three organizations housed in the same area of the building,” i.e. the police, the Supreme Court, and the Public Prosecution Service. I note that at the Mellor Courthouse, Crown and defence counsel have access to interview rooms, but do not actually have dedicated offices. [ 18 ] Dr. Stinson poses several related questions.

She asks, for instance, whether, “panel members who have had direct or indirect negative interactions with police feel welcome and included when they see the Halifax Regional Police sign, prominently displayed, next to the sign for the court?

Or is it possible that some of them will feel resentment, aversion, anger at being asked to participate in a criminal justice system that has oppressed them?” She states that there is apparently no scientific research on these exact questions, but says “[w]e know that people hold myths and misapprehensions about a host of issues that intersect with our criminal justice system.” She continues in her report: Based on my experience and knowledge on juror decision-making and related literatures, I believe it is likely that some members of the jury panel will not understand the separate roles and responsibilities of the Halifax Regional Police, the Nova Scotia Supreme Court.

The location of the Burnside court does not advance people’s abilities to distinguish among these three. Although instructions from the court may be helpful, numerous scientific studies have demonstrated that jurors do not remember or use instructions from the court (e.g., to disregard pretrial publicity…). Moreover, I think it is likely that the location of the Burnside court (adjacent to Halifax Regional Police) will trigger unpleasant memories and negative emotions for some people whose direct or indirect experiences with Halifax Regional Police were negative.

Members of Indigenous or African Nova Scotian communities are more likely to have had those experiences. So, it is likely that some members of Indigenous or African Nova Scotian communities who are summoned for jury duty and whose direct or indirect experiences with Halifax Regional Police were negative will experience negative emotions upon arriving at the Burnside Court. These negative emotions may affect their willingness to serve on a jury (thereby affecting representativeness) and/or their impartiality. [ 19 ] Dr.

Stinson was cross-examined about the degree to which her opinion rested on speculation about the behaviour of potential jurors: Q. And, as a converse to that, the fact that you cannot see the sign of Halifax Regional Police as you’re actually entering the court itself… All I’m asking you is the degree of your concern. You talked earlier about it, ‘not sure if it’s a big problem or a small problem’. So, does that fact diminish your concern to some degree? A. Um, I think it could cut both ways.

I think if we learned anything from the Wortley Report and other scholars who’ve written about the experiences of African Nova Scotians, African Canadians, and Indigenous people, is that white folks cannot pretend to know what it’s like to live as an Indigenous person or an African Canadian. And, so, I…I know…I think you’re looking for a ‘yes’ or ‘no’ answer, I don’t know. I would worry that some people might feel tricked, right?

Like, what if some people feel they don’t see the Halifax Regional Police sign when they come in, right, but they see it when the leave and they wander away – ‘oh my goodness, is this all part of this operation?’. I realize that it sounds a bit conspiracy minded. I’m not a conspiracy minded person, but I am mindful of what I read in the Wortley Report and others about people’s experiences, their distrust of police, and their feelings of having been treated unfairly and I…I just worry a little bit about that. So, I don’t know that my concerns would be diminished substantially.

In some ways I…I…I wonder if people might feel deceived. It might feel like they’re trying to h-, you know, like they’re…I…I doubt it, but I…I don’t think the probability is zero. Of course…yeah. Q. You’d agree, and I wouldn’t use the word ‘conspiracy’, but you’d agree that that’s a pretty speculative leap to make from your position. Do you agree with that? A. Ooh, I…I…I’m…I’m sharing possibilities here, right? … A.

Absolutely. … Q. …And in your report, you…you say you think it’s likely – I think today you were more prone to use the word ‘possible’ – it’s possible that the location might trigger unpleasant memories with negative emotions for people who had had direct or indirect experiences with the Halifax Regional Police. Do you recall that part of your testimony and your report?

A. Yes. Q. And, in particular, you mentioned African Canadians and Indigenous persons in this country, in this province. Is that right? A. Yes. Q. That’s being sort of m-…because of their experiences, they may be more likely to experience, to have those memories triggered. Isthat right? A. Yes. It’s possible for some people, yes. Q. And that it’s possible that those triggered emotions might affect their willingness to serve on a jury? A. Yes. Q. And it’s possible that those triggered memories might affect their impartiality if they were to be on a jury, if they were to be selected? A. Yes. [20] Dr.

Stinson was also asked about the situation of a potential juror seeing a police officer, in comparison to seeing the HRP sign: Q. There’s a greater likelihood that someone who’s had a negative experience with police officers will have unpleasant memoriestriggered by the sight of a real, uniformed, armed police officer than they would seeing a sign for the Halifax Regional Police? A. Yes, I would agree with that. Q. And would you agree, and I apologize some of my questions are getting a little long but I’m trying to break them up a little.

Wouldyou agree with me that a courthouse that is more likely to be frequented by armed, uniformed police officers would be a greater concernfor you, in terms of the concerns you’ve expressed in your opinion, that would be a greater concern than a courthouse that is less likely tobe frequented by armed, uniformed police officers? A. Um, by concern, what…what do you mean by concern? Q. The concern that a person may be triggered by unpleasant memories. A. To the extent that they actually encounter these police officers, right? I mean that they actually see them.

Yes. [21] As a member of the Nova Scotia Judiciary, I am aware, and it is trite to say, that criminal trials are regularly conducted incourthouses in Nova Scotia. Uniformed police officers are often witnesses in those trials. In addition, many courthouses house offices ofjudges and justices of the peace, where police attend to have wiretaps authorized and search warrants issued. The chance of a citizenencountering a uniformed police officer in a courthouse is high. At the Mellor Courthouse, there are no administrative offices.

Nojustices of the peace are housed there, and judges are only present during jury trials. Therefore, while a juror may see a police officer inthe Mellor Courthouse if they are testifying in a trial, the number of identifiable police officers inside the Mellor Courthouse wouldlikely be less than in most courthouses in this province. Admissibility of Expert Opinion Evidence [22] The leading case on the admissibility of expert evidence is White Burgess Langille Inman v Abbott and Haliburton Co, 2015SCC 23 , [2015] 2 SCR 182. Justice Cromwell, for the court, set out a two-stage analysis.

Referring to R v Mohan, (SCC), [1994] 2 SCR 9, he summarized the dangers arising from such evidence, including the possibility that “the trier of fact willinappropriately defer to the expert’s opinion rather than carefully evaluate it” (para 17). He continued: [18] The point is to preserve trial by judge and jury, not devolve to trial by expert. There is a risk that the jury “will be unableto make an effective and critical assessment of the evidenceˮ: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave toappeal refused, [2010] 2 S.C.R. v.

The trier of fact must be able to use its “informed judgment”, not simply decide on the basis of an “actof faith” in the expert’s opinion: J.-L.J., at para. 56. The risk of “attornment to the opinion of the expertˮ is also exacerbated by the factthat expert evidence is resistant to effective cross-examination by counsel who are not experts in that field: D.D., at para. 54.

The casesaddress a number of other related concerns: the potential prejudice created by the expert’s reliance on unproven material not subject tocross-examination (D.D., at para. 55); the risk of admitting “junk science” (J.-L.J., at para. 25); and the risk that a “contest of experts”distracts rather than assists the trier of fact (Mohan, at p. 24).

Another well-known danger associated with the admissibility of expertevidence is that it may lead to an inordinate expenditure of time and money... [23] Justice Cromwell went on to describe a two-stage analysis, derived from the approach suggested by the Ontario Court ofAppeal in Abbey: [23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility.

These arethe four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the caseof an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for thatpurpose... Relevance at this threshold stage refers to logical relevance... Evidence that does not meet these threshold requirements shouldbe excluded.

Note that I would retain necessity as a threshold requirement... [24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting theevidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in variousways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance,reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47.

Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditionsto admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process thatmay flow from the admission of the expert evidence”: para. 76. [24] Justice Cromwell also discussed the nature of the expert’s duty to the court (resting on the concepts of impartiality,independence and absence of bias), an element of the “qualified expert” component of the Mohan analysis. [25] The Crown does not dispute that the expert evidence is logically relevant to the issue on the application.

Further, if the fourMohan criteria are met, the Crown agrees that the second-stage “gatekeeping” analysis would “narrowly” favour admissibility, notingthat while the evidence has low probative value and reliability, there are no concerns about time consumption, prejudice, or confusion.The objections are twofold: the Crown says the evidence is not necessary, and that the experts are not qualified. Necessity [26] The Crown disputes the necessity of the proposed expert evidence. The court in Mohan said the following about necessity: 21 In R. v.

Abbey, supra, Dickson J., as he then was, stated, at p. 42: With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert'sfunction is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical natureof the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely tobe outside the experience and knowledge of a judge or jury.

If on the proven facts a judge or jury can form their own conclusions withouthelp, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.) 22 This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" isnot quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard.

What is required is thatthe opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judgeor jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of factto appreciate the matters in issue due to their technical nature. In Kelliher (Village of) v.

Smith, (SCC), [1931] S.C.R. 672,at p. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to beadmissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, ifunassisted by persons with special knowledge"... 23 As in the case of relevance, discussed above, the need for the evidence is assessed in light of its potential to distort the fact-findingprocess. As stated by Lawton L.J. in R. v.

Turner, [1975] Q.B. 834, at p. 841, and approved by Lord Wilberforce in Director of PublicProsecutions v. Jordan, [1977] A.C. 699, at p. 718: "An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience andknowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of anexpert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult.

The fact that anexpert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature andbehaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think itdoes." The possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions. [Emphasis added.] [27] With respect to Dr.

Kovalev’s report, the applicant submits that the subjects of the opinions offered are “simply not things thatwould be within a trier of facts [sic] general knowledge.” The opinions are, he submits, “based upon the experts [sic] unique experienceand expertise about what impact the location of the court relative to a well-marked … police office” could have on a jury’s partiality andon “individuals readily attending for jury duty…” Applicant’s counsel submits in particular that the historical development of theseparation of courts from other institutions “is not something that would typically be within the knowledge of the trier of fact.” This is allasserted, without any particular attempt to provide a substantial foundation to the bare assertion that the evidence is necessary to thecourt’s ability to decide the Charter issues, in the sense described in the caselaw. [28] As to Dr.

Stinson’s report, the applicant says his complaints that the location of the courthouse “may impact prospectivemembers of the jury and in particular, particular segments of society like persons of colour and thus potentially impact Mr. Enns’ rights,is not something that would generally be common knowledge of a trier of fact. Without some expert evidence to assist the court on thisimportant and relevant issue, we are left with mere speculation.” Once again, there is little attempt by counsel to substantiate the bareassertion that these are issues the court is not equipped to assess without expert assistance.

Counsel writes that Dr. Stinson has “someunique experience” arising from her work as a jury consultant in the United States, that allowed her to interview jurors, which would notbe possible in Canada. It is not clear how interviewing American jurors provides a foundation for Dr.

Stinson’s claimed expertise on thelikely reaction of members of the public reporting for potential jury duty at the Mellor courthouse. [29] The Crown submits that issues of juror bias and jury representativeness are within the expertise of trial judges, and have been“dealt with by our courts for as long as there have been jury trials.” Expert evidence does not become necessary simply because suchissues have been raised. The jury trial system has safeguards to protect trial fairness. Moreover, the Crown notes the well-establishedprinciple that jurors will do their duty as instructed by the trial judge.

Justice Binnie, for the court, said the following in R. v Spence,[2005] 3 SCR 458, 2005 SCC 71, in the context of the challenge for cause procedure (some citations omitted): 21 Our criminal law is premised on the ability of 12 jurors to do their job with "indifference" as between the Crown and the accused. Wedo not start with the idea that it is up to the potential juror to demonstrate his or her impartiality. Our procedures in this respect differfrom the American approach. In this country, people called for jury duty benefit from a presumption that they will do their duty without

bias or partiality... 22 Our collective experience is that when men and women are given a role in determining the outcome of a criminal prosecution, theytake the responsibility seriously; they are impressed by the jurors' oath and the solemnity of the proceedings; they feel a responsibility toeach other and to the court to do the best job they can; and they listen to the judge's instructions because they want to decide the caseproperly on the facts and the law. Over the years, people accused of serious crimes have generally chosen trial by jury in the expectationof a fair result.

This confidence in the jury system on the part of those with the most at risk speaks to its strength. The confidence isreflected in the Charter guarantee of a trial by jury for crimes (other than military offences) that carry a penalty of five years or more (s.11(f)). [30] While the proposed experts opine that jurors cannot be relied upon to follow trial judges’ instructions, the Supreme Court ofCanada says otherwise. In R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, at para 45, Lamer C.J., quoting with approvalfrom R v Lane and Ross (1969), (ON SC), 6 CRNS 273 (Ont.

S.C.), said: I feel that it is quite possible, as has been done in many cases in the past, to explain clearly to the jury, in such a way that they will governthemselves in accordance with the directions of the Judge, that the confession of one accused in a joint trial is not evidence against hisco-accused.

The danger of a miscarriage of justice clearly exists and must be taken into account but, on the other hand, I do not feel that,in deciding a question of this kind, one must proceed on the assumption that jurors are morons, completely devoid of intelligence andtotally incapable of understanding a rule of evidence of this type or of acting in accordance with it.

If such were the case there would beno justification at all for the existence of juries, and what has been regarded for centuries as a bulwark of our democratic system and aguarantee of our basic freedoms under the law would in fact be nothing less than a delusion. [31] Similarly, in R. v. Chouhan, 2021 SCC 26, Moldaver J. discussed bias and partiality, and, more specifically, the court’s abilityto address potential jury bias by means of jury instructions: [48] Although our jury system depends on the impartiality of each juror, it does not demand that jurors be neutral.

ThisCourt explained the distinction between impartiality and neutrality in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 43: Impartiality does not require that the juror’s mind be a blank slate. Nor does it require jurors to jettison all opinions, beliefs, knowledgeand other accumulations of life experience as they step into the jury box. Jurors are human beings, whose life experiences inform theirdeliberations.

But the life experiences that jurors may legitimately bring to their deliberations cannot interfere with their responsibility to approach thecase with “an open mind, one that is free from bias, prejudice, or sympathy” (R. v. Barton, 2019 SCC 33, at para. 195). [49] In our view, jury instructions have a critical role to play in ensuring that jurors approach their deliberations free frombias.

Jury instructions can respond to a significant danger of biased reasoning, which is that many biases are unconscious: individualsoften do not recognize they hold a particular bias and would likely, and honestly, deny having it if asked… And jurors must be madeaware of their own unconscious biases if the influence of biased reasoning is to be eliminated… In appropriate cases, therefore, trialjudges should consider providing the jury with instructions that will “expose biases, prejudices, and stereotypes that lurk beneath thesurface, thereby allowing all justice system participants to address them head-on — openly, honestly, and without fear” (Barton, atpara. 197).

Such instructions can add a measure of self-consciousness and introspection that fosters objectivity and fairness over thecourse of the jury’s deliberations... [50] Anti-bias instructions will be appropriate wherever “specific biases, prejudices, and stereotypes . . . may reasonablybe expected to arise in the particular case” (Barton, at para. 203). This is not because of some freestanding notion or interpretiveprinciple of “substantive equality”, as our colleague Martin J. suggests (at para. 110), but because impartiality is inherently attuned to theconcept of bias.

As our understanding of the nature of bias evolves, so will our understanding of what a trial judge must do to fosterimpartiality among members of the jury. Informed by recent case law and a modern understanding of impartiality, trial judges maytherefore draw on their own professional experiences and good sense in deciding whether anti-bias instructions are required, and thesubmissions of counsel will be helpful in identifying appropriate cases for such instructions. The reality is that context matters: no trial“take[s] place in a historical, cultural, or social vacuum” (Barton, at para. 198).

Participants in the justice system must remain vigilant inidentifying and addressing the unconscious biases that might taint the integrity of jury deliberations. [32] Neither of the proposed experts directly dealt with the Supreme Court of Canada’s clear views on the efficacy of juryinstructions, and, more generally, the fundamental presumption that properly instructed jurors will do their duty. [33] The applicant has provided no grounds whatsoever for a finding that the evidence of either of the proposed experts is necessaryfor the court to decide this application. While Dr.

Kovalev provided a degree of background on the development of ideas aboutcourthouse architecture and location, this was couched in very general terms, and offered no particular insight that would be unavailableto a trial judge who is aware of the requirements of a fair trial. As the Crown argues, courts are accustomed to dealing with issues of juryrepresentativeness, including challenges for cause based on potential racial bias. To the extent that these are the issues on thisapplication, nothing in the proposed expert evidence is beyond the court’s ability to form its own judgments.

Qualified Expert [34] The court in Mohan stated that “the evidence must be given by a witness who is shown to have acquired special or peculiarknowledge through study or experience in respect of the matters on which he or she undertakes to testify” (para 27). [35] The general thrust of the applicant’s argument on qualification of both experts is that they have impressive qualifications (bothhold doctorates) and are recognized commentators and scholars on various issues related to jury trials.

Although both experts madereference to secondary literature on the point, neither purported to have any specific direct expertise respecting the experience ofIndigenous and African Nova Scotians with the justice system. Both proposed experts demonstrated some background with issuesrelating to juries, though more in terms of the operation of juries than their selection. However, neither of them claimed any experience

on the specific issue before the court: the likelihood that the location of the courthouse in proximity to a police station will leadIndigenous and African Nova Scotians to avoid responding to jury summonses or that selected jurors will be confused or biased so as toimpact the applicant’s fair trial rights, for instance, by depriving him of a representative jury pool. [36] The bulk of Dr. Kovalev’s experience was focused on comparative and historical scholarship, with particular focus on jurysystems in developing and post-Soviet states.

His background on matters of jury participation and perceptions of the justice system weremore limited, and he demonstrated no apparent basis for expertise on perceptions of the justice system by Indigenous and African NovaScotians. Certainly there was nothing apparent in his qualifications that suggested any superior expertise on this point as compared with atrial judge with experience conducting jury trials. The applicant says such concerns should go to weight. [37] Dr. Stinson has studied the conduct of juries, including such subjects as eyewitness testimony and bias arising from pre-trialpublicity.

As with Dr. Kovalev, it was acknowledged that she had never studied the specific issue before the court, and was not aware ofany specific studies or scholarship on the point. While that in itself does not negate a proposed expert’s viability, in this case it essentiallyleaves a vacuum. Moreover, Dr.

Stinson did not claim specific expertise in systemic racism or in the experience of Indigenous andAfrican Nova Scotians with the justice system. [38] Considering the conflict between the proposed experts’ opinions as to whether jurors can and will follow a judge’s instructions– in contrast with the clear guidance from the Supreme Court of Canada on that point - the heart of the issue on this application really haslittle to do with juries, their functioning and/or bias.

The real substance – that is, the only thing that could conceivably give theapplication any viability – is the experience of Indigenous and African Nova Scotians with the justice system, and what (if any)implications that has for their willingness to serve on a jury when a police station is near the courthouse. Nothing in Dr. Kovalev’s or Dr.Stinson’s established areas of expertise gives either proposed expert any basis to claim expertise on this novel question. [39] The testimony of Dr. Kovalev and Dr. Stinson is not admissible.

I conclude both that it is not necessary, and that neitherwitness possesses expertise on the issues before the court. I will go on to consider the applicant’s constitutional arguments regarding theMellor courthouse, without consideration of the proposed expert evidence. The Charter Issues [40] As noted earlier, the applicant says his right to a fair trial is endangered by the courthouse location.

Specifically he claimsviolations of his right to life, liberty, and security of the person under s. 7 of the Charter, and his right “to be presumed innocent untilproven guilty according to law in a fair and public hearing by an independent and impartial tribunal” under s. 11(d). Change of Venue [41] An application for a change of venue may be ordered on the ground that jury independence, or the public perception of it, iscompromised by the inadequacy of court facilities. For instance, in R v.

Izzard (1971), (NS SC), 4 NSR (2d) 263,[1971] NSJ No 161 (SCTD), a mistrial was ordered during a first trial, in part because the courthouse walls were so thin that jurors in thejury room could hear what was being said in a voir dire in the courtroom. A change of venue was therefore ordered for the second trial.In R v Francis, 2007 NSSC 108, [2007] NSJ No 143, an older courthouse had several deficiencies, including being inaccessible topersons with disabilities, leading to a change of venue on the basis that this would interfere with the accused’s right to a randomlyselected representative jury panel.

In discussing the need for a change of venue because of the need for representativeness, JusticeWarner said: 29

Section 11(

d) of the Canadian Charter of Rights and Freedoms gives an accused charged with second degree murder, the right to trialby jury. This provision has been interpreted by some courts as entitling accused persons to a representative jury panel. R. v. F.(A.), (ON SC), [1994] O.J. No. 1392, 1994 CarswellOnt 81 (O.C.J.), and R. v. Yooya, [1994] S.J. No. 584, 1994 CarswellSask269 (S.Q.B.) are decisions in which the principle that a jury must, as far as possible, represent the broad spectrum of society and not aspecial part of it.

By logic and analogy, the jury must not exclude a spectrum of society, if possible, without that exclusion being basedupon a reason logically connected with, and justifiable under, the criminal trial process. This conclusion is consistent with the analysis ofJustice Rosenberg for the Ontario Court of Appeal at

Part IX of its decision in R. v. Church of Scientology, (ONCA), [1997] O.J. No. 1548, 1997 CarswellOnt 1565 (and R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509, which RosenbergJ.A. quotes at paragraph 150). The selection of the jury panel in accordance with the Juries Act is the primary vehicle for ensuringrepresentativeness. It does not create an entitlement to a panel of all of the many groups that make up Canadian society, althoughexclusion of certain groups, by statute, may infringe the requirement of a representative cross-section.

Exclusion of a group, which hasbeen randomly selected to the jury list or the jury panel in accordance with the statute, whether excluded by intent or by effect, andwhere accommodation is possible without undue hardship, negates randomness, breaches the statutory right of the accused, and infringeon trial fairness. [42] On the requirements of impartiality and representativeness in a jury, the applicant also cites such authorities as R. v. Sherratt, (SCC), [1991] 1 SCR 509, Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 , [2002] 2SCR 522, R. v.

Church of Scientology of Toronto (1997), (ON CA), 116 CCC (3d) 1 (Ont. C.A.), and R. v.Buckingham, 2007 NLTD 107. In Sherratt, the majority said: 35 The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform itsduties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the twocharacteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make itsexistence desirable in the first place.

Provincial legislation guarantees representativeness, at least in the initial array. The randomselection process, coupled with the sources from which this selection is made, ensures the representativeness of Canadian criminaljuries… [43] The right to a representative jury was discussed in R. v. Kokopenace, 2015 SCC 28 , [2015] 2 SCR 398, whereMoldaver J. said, for the majority:

39 Representativeness is an important feature of the jury; however, its meaning is circumscribed. What is required is a "representativecross-section of society, honestly and fairly chosen": R. v. Sherratt, (SCC), [1991] 1 S.C.R. 509, at p. 524. There is noright to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society.Courts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on either thejury roll or petit jury...

As Rosenberg J.A. observed in Church of Scientology, at p. 121, "[w]hat is required is a process that provides aplatform for the selection of a competent and impartial petit jury, ensures confidence in the jury's verdict, and contributes to thecommunity's support for the criminal justice system." 40 As this statement indicates, representativeness is about the process used to compile the jury roll, not its ultimate composition.

Todate, the jurisprudence has discussed two key features of the jury roll process that ensure representativeness: the use of source lists thatdraw from a broad cross-section of society, and random selection from those sources... I would add a third feature to this list, namely, thedelivery of notices to those who have been randomly selected. A jury roll is representative when these three features are present,provided that the state has not deliberately excluded members of a particular group.

This process aims to ensure that there is anopportunity for individuals with varied perspectives to be included on the jury... It also seeks to preclude systemic exclusion of segmentsof the population... [44] As to the relationship between the presumption of innocence under s. 11(

d) of the Charter and jury representativeness,Moldaver J. said: 48 Since s. 11(

d) focuses on the independence and impartiality of the tribunal, the role of representativeness under this guarantee isnecessarily limited to its effect on these concepts. A problem with representativeness that does not undermine independence orimpartiality will not violate s. 11(d). The parties in this case focused on the impartiality aspect of s. 11(d). Accordingly, I will limit mycomments to this concept. 49 To determine whether a tribunal is impartial, the question is whether a reasonable person, fully informed of the circumstances, wouldhave a reasonable apprehension of bias...

A tribunal must be impartial at both the institutional and individual levels. Even if the petit jurydoes not appear to be biased, s. 11(

d) will be violated if the process used to compile the jury roll raises an appearance of bias at thesystemic level… 50 Representativeness is an important guarantor of impartiality... There are two potential problems with representativeness that mayimpact on impartiality. First, the deliberate exclusion of a particular group would cast doubt on the integrity of the process and violate s.11(

d) by creating an appearance of partiality... Second, even when the state has not deliberately excluded individuals, the state's efforts incompiling the jury roll may be so deficient that they create an appearance of partiality... However, where neither form of conduct exists,a problem with representativeness will not violate s. 11(d). 51 One important clarification about the relationship between representativeness and impartiality is in order.

The narrow way in whichrepresentativeness is defined in Canadian jurisprudence means that impartiality is guaranteed through the process used to compile thejury roll, not through the ultimate composition of the jury roll or petit jury itself. A jury roll containing few individuals of the accused'srace or religion is not in itself indicative of bias. … 54 Several principles emerge from this discussion. First, the link between representativeness and s. 11(

d) is restricted to the effect ofrepresentativeness on the impartiality of the tribunal. Second, and by extension, a problem with representativeness does not automaticallytranslate into a s. 11(

d) violation: one must always look at whether the state's conduct created an appearance of bias. Finally,representativeness promotes impartiality through the process used to compile the jury roll, not through its ultimate composition. [45] As to the test for whether the state had met the requirement of representativeness, Moldaver J. said: 61 As a result, I would reframe the test as follows. To determine if the state has met its representativeness obligation, the question iswhether the state provided a fair opportunity for a broad cross-section of society to participate in the jury process.

A fair opportunity willhave been provided when the state makes reasonable efforts to: (1) compile the jury roll using random selection from lists that drawfrom a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected. In other words, it is the actof casting a wide net that ensures representativeness.

Representativeness is not about targeting particular groups for inclusion on the juryroll. … 66 That said, if the state deliberately excludes a particular subset of the population that is eligible for jury service, it will violate theaccused's right to a representative jury, regardless of the size of the group affected. It is self-evident that the state will not have madereasonable efforts if it deliberately excludes part of the population. Deliberate exclusion undermines the integrity of the justice systemand cannot be tolerated.

However, if it is a question of unintentional exclusion, it is the quality of the state's efforts in compiling the juryroll that will determine whether the accused's right to a representative jury has been respected. If the state makes reasonable efforts butpart of the population is excluded because it declines to participate, the state will nonetheless have met its constitutional obligation. Incontrast, if the state does not make reasonable efforts, the size of the population that has been inadvertently excluded will be relevant.

Afailure to make reasonable efforts in respect of a small segment of the population will not undermine the overall representativeness of thejury roll because there is no right to proportionate representation. When only a small segment of the population is affected, there will stillhave been a fair opportunity for participation by a broad cross-section of society. [46] The applicant further cites R. v King, [2019] OJ No 5587, 2019 ONSC 6386, where the court considered the right to anindependent and impartial tribunal under s 11(

d) of the Charter, with particular reference to the need for a tribunal to be perceived asimpartial and independent; the court cited the remark in R. v. Bain, (SCC), [1992] 1 SCR 91, that “A jury need not befound to be actually partial before an infringement of the Charter is found. The informed observer’s perception that the system ofselecting jurors impairs impartiality is sufficient” (King, at para 71, citing Bain at p. 93).

[47] The applicant cites various cases where improper communications or relationships between police or other trial participantsand jurors has been a ground for a remedy: R v Ryan (1951), (BC CA), 101 CCC 101 (BCCA); R v Masuda (1953), (BC CA), 106 CCC 122 (BCCA); R v Mayhew (1975), (ON CA), 29 CRNS 242, 1975 CarswellOnt11 (Ont CA); R v Hertrich (1982), 137 DLR (3d) (Ont CA); R v Afghanzada (2000), (ON CA), 149 CCC (3d) 349(Ont CA).

In Afghanzada, the appellant argued, inter alia, that that the right to a fair trial, or the appearance thereof, was denied as aresult of the trial judge's failure to properly inquire into allegations that there were conversations during the trial between members of thejury and the officer in charge of the prosecution. The Ontario Court of Appeal allowed the appeal from conviction on this ground. Thecourt said: 14 Juries must be kept completely free from the taint of any outside influence, or from the appearance of any such contamination. Asnoted by the British Columbia Court of Appeal, in R. v.

Masuda (1953), (BC CA), 106 C.C.C. 122 (B.C.

C.A.), at pp.123-124, where such circumstances leave "a taint of suspicion of prejudice to the fair trial of the accused", two essentials of justice areviolated: The one is that the jury must be kept completely free from any opportunity of communication during the trial, except under the mostexceptional circumstances calling for a direction from the Court; and, secondly, that nothing must occur during the trial of a case fromwhich a suspicion may arise that any taint attaches to the proper and meticulous fairness which must always surround the administrationof public justice . . . 15 Both the fact of a fair trial and the appearance of a fair trial are essential to the administration of justice.

In my view, the inquiryinto the incident which was alleged to have occurred here was not adequate to remove that "taint of suspicion of prejudice to the fair trialof the accused" and thus the taint of prejudice to the public administration of justice. [48] None of the authorities cited by the applicant can be extended to support the view that a fair trial will be tainted merely by thesight of a police station sign, or of a police officer in a location (such as a courthouse) where they are legitimately present.

There are,however, Canadian and American authorities that have addressed fair trial issues arising from courthouse location and design. Caselaw on Courthouse Location and Design [49] On the specific issue of the location of the trial, in addition to Francis, the applicant relies on State v Jaime, 168 Wn.2d 857(2010)(SC WA en banc), where the Supreme Court of Washington held that there was a denial of due process when the appellant’s trialwas conducted in a jail.

The issue was “whether the average juror would take for granted his or her presence in a jail, i.e., whether jurorsare so inured to the experience of being in a jail building that it would have no effect on their perspective as jurors” (para 8). Stephens J.held, for the majority, that the answer was “self-evident”, and said, at paras 8-11(citations omitted): … “‘[R]eason, principle, and common human experience’” tell us that the average juror does not take for granted a visit to a jail... Theaverage juror does not frequent the jailhouse for the very reason that a jailhouse is not meant to be a public space.

Unlike a courthouse, inwhich the public is welcome to—and in some instances required to—conduct all manner of business, a jail serves a specific purpose notgenerally applicable to the public at large. The difference between jailhouses and courthouses is evident even in their architectural contrast. Courthouses are often monuments ofpublic life, adorned with architectural flourishes and historical exhibits that make them inviting to members of the public. Many of ourcounty courthouses are on historical registries and are visited each year by school children, civic groups, and tourists.

A jail, on the otherhand, is singularly utilitarian. Its purpose is to isolate from the public a segment of the population whose actions have been judgedgrievous enough to warrant confinement. Jail buildings are typically austere in character, and entrance is subject to heightened security.Indeed, the Yakima County jail in which Jaime’s trial was held was described by the judge in an unrelated trial as “a monolithic concretebuilding.”...

Given the character of a jail, a juror would not take a visit to a jailhouse for granted, nor would he or she be inured to the experience… Ajuror’s experience with jail is very likely limited to what our societal discourse tells us of jails: they are high-security places that houseindividuals who need to be in custody. That the average juror would draw a corresponding inference from that experience is reasonableto surmise. Of course, some jurors’ experience with a jail may be more personal but no less negative.

What if, for example, one of Jaime’s jurorswas the victim of domestic violence whose abuser was housed in the jail? Her visit to the jail would not strike her as unremarkable orroutine. It takes no great logical leap to conclude that such a juror’s heightened awareness of her surroundings could contributenegatively to her view of the defendant. [50] The majority in Jaime cited Holbrook v.

Flynn, 475 U.S. 560, where the US Supreme Court held that the presence of securityguards in the courtroom was not inherently prejudicial, in part because “[o]ur society has become inured to the presence of armed guardsin most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular officialconcern or alarm,” (cited in Jaime at para 7). Stephens, J. held that a different conclusion resulted from holding a trial in a jail: In short, under the analysis of Holbrook, holding a trial in a jail courtroom is inherently prejudicial for two reasons.

First, the setting isnot in a courthouse, a public building whose purpose is to provide a neutral place to conduct the business of the law. Second, the settingthat replaces the courthouse has a purpose and function that is decidedly not neutral, routine, or commonplace. Holding a criminal trial ina jailhouse building involves such a probability of prejudice that we must conclude it is "`inherently lacking in dueprocess.'" Holbrook, 475 U.S. at 570 (quoting Estes, 381 U.S. at 542-43).

Our decision accords with that of a neighboring jurisdiction that has considered the propriety of a trial held outside a courthouse. In Statev. Cavan, 337 Or. 433, 98 P.3d 381 (2004), the Oregon Supreme Court considered a defendant's trial that was held in a state correctionalfacility. Cavan is not directly analogous to this case because it involved a trial held in a prison rather than a county jail, but we find thatmuch of the court's description of the prejudice inherent in holding a trial in a prison applies to a jail.

Both settings are places "that thepublic, as a general matter, is unlikely to visit," where the jury's safety and "to a large extent, the trial itself, are in the control of the

[facility's] administrators and corrections personnel." Id. at 448. Most importantly, a jail, like a prison, "forcefully conveys to a jury theoverriding impression of a defendant's dangerousness and ... by extension, his or her guilt." Id. [51] Even if Jaime were sufficiently close on the facts to give substance to the nebulous issues raised by Mr. Enns (and hisproposed experts) – and it is not – it is necessary to be cautious with American authority in this field. As Binnie J. said in Spence,Canadian jury procedures and governing principles “differ from the American approach.

In this country, people called for jury dutybenefit from a presumption that they will do their duty without bias or partiality” (para 21). As noted above, both of Mr. Enns’s proposedexperts were skeptical of the ability of jurors to perform their tasks as instructed.

If this is in fact the case, of course, the real challenge isnot to the mere location of a courthouse, but to the very functionality of the jury system. [52] Despite the differences between the American and the Canadian approach to jury trials in general, a sentiment similar to thatexpressed in Corbett by Lamer C.J. regarding the intelligence and trustworthiness of jurors was repeated in Jaime, where Johnson J., indissent, said: 42 An abiding faith in the intelligence of juries and their commitment to follow the law has long been a fixture of our jurisprudence.

Weassume "that jurors are intelligent and responsible individuals." State v. Lord, 161 Wn.2d 276, 278-79, 165 P.3d 1251 (2007). Thisassumption is fundamental to our democratic system of governance, given that "[a] similar assumption about voters," the pool fromwhich we draw jurors, "underlies our democracy." Id. at 279. As another court put it: [O]ur system of laws depends upon the assumption that jurors are intelligent. "A juror is not some kind of dithering nincompoop, broughtin from never-never land and exposed to the harsh realities of life for the first time in the jury box." People v. Barnum, 86 Cal.

App. 4th 731, 104 Cal. Rptr. 2d 19, 24 (Cal. Ct. App. 2001) (citation omitted) (quoting People v. Long, 38Cal. App. 3d 680, 689, 113 Cal. Rptr. 530 (1974)), superseded on other grounds, 29 Cal. 4th 1210, 64 P.3d 788, 131 Cal. Rptr. 2d 499(2003).

The majority contradicts the presumption of juror responsibility, intelligence, and honesty when it summarily concludes that "theaverage juror would draw a[n] [improper] inference" about a defendant's guilt from the fact that trial was held in a jail courtroom.Majority at 864. [53] Following a discussion of the general jury safeguards of fairness such as the presumption of partiality and the effectiveness ofjudicial instructions to a jury, Doherty J.A. stated in R v Parks (1993), (ON CA), 84 CCC (3d) 353 (Ont CA), leave toappeal denied, [1993] SCCA No 481, at para 58: There is a longstanding debate about the effectiveness of these trial safeguards.

That debate is part of the wider dispute concerning theeffectiveness of the jury system as an adjudicative process. Our system requires that I accept that the jury system is effective, and that thesafeguards are effective, and generally produce verdicts based only on an application of the law as provided by the trial judge to theevidence adduced at trial. The availability of the right to challenge for cause based on partiality, however, demonstrates that in somesituations these safeguards are seen to be insufficient, and must be supplemented by the challenge process. [54] Mr.

Enns is critical of the decision to build a new courthouse in close physical proximity to the HRP. He does not say howclose is too close. In Jaime, Stephens J. discussed the possibility of a courthouse or courtroom physically impinging on accused person’sappearance of innocence, and said, at paras 4-5: …In order to preserve a defendant's presumption of innocence before a jury, the defendant is "entitled to the physical indicia ofinnocence which includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a freeand innocent man." Id.

"Measures which single out a defendant as a particularly dangerous or guilty person threaten his or herconstitutional right to a fair trial." Id. at 845. Such measures threaten a defendant's right to a fair trial because they erode his presumptionof innocence; these types of courtroom practices are inherently prejudicial. See, e.g., id. at 844-45. Thus, the first question we must answer is whether a jailhouse setting is inherently prejudicial and thereby offends due process.

Webegin with the recognition that "the courtroom in Anglo-American jurisprudence is more than a location with seats for a judge, jury,witnesses, defendant, prosecutor, defense counsel and public observers; the setting that the courtroom provides is itself an importantelement in the constitutional conception of trial, contributing a dignity essential to `the integrity of the trial' process." Estes v. Texas, 381U.S. 532, 561, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Warren, C.J., concurring) (quoting Craig v. Harney, 331 U.S. 367, 377, 67 S.Ct.1249, 91 L.Ed. 1546 (1947)).

Because the courtroom setting itself is essential to a trial's integrity, we should be wary of a setting thatimpermissibly influences a jury's decision-making process and jeopardizes the presumption of innocence. [55] In Mr. Enns’s case, of course, the trial will not be conducted inside a jail or a police station, but in a clearly marked courthouse,which shares a “strip mall” complex with several businesses and organizations, including a police station. The separate entrances foreach establishment at the Mellor Avenue complex are clearly marked, and none of the occupants appear to be connected.

In Jaime,Alexander J., in concurring reasons, discussed the difference between holding a jury trial in a jail, and holding a jury trial near a jail: 19 I agree in every respect with the majority opinion written by Justice Stephens. I write separately for the sole purpose of responding toJustice J.M. Johnson's remarks on the fact that in the past and present, some of our counties have located their jail within the countycourthouse.

While he is correct in that assertion, it should be noted that in those counties where this is or has been the practice, thecounty jail has generally been located on the top floor of the courthouse. In other counties, the jail has been situated in a separate buildingadjacent to but connected to the courthouse. In either case, the jail has been kept completely separate from the portion of the courthousethat contained courtrooms and other county offices. Thus, one entering such a county courthouse to conduct business or attend a courtsession would have no sense that they were in a building that housed the jail.

That is entirely different from the situation we arepresented with here, the record making it clear that Yakima County's jail building was designed and built for the purpose of serving as ahouse of detention. That is its entire purpose, and the addition of a courtroom within the walls of that building was entirely anafterthought.

Thus, persons entering the Yakima County jail building intending to attend a jury trial, unlike persons entering a courthouseof the sort described above, will be aware that they are entering a jail facility. 20 In the final analysis, there is a significant difference between a jail in a courthouse and a courtroom in a jailhouse. For the reasons

stated by Justice Stephens, we can reasonably conclude that a jailhouse courtroom is not a neutral site and conducting a criminal casejury trial in such a setting erodes the presumption of innocence to a degree that denial of due process of law is the inescapable result. [56] I agree that there is a significant difference between locating a courthouse near a police station, as in the case here, and locatinga courtroom in a police station. [57] As Stephens J. explained in Jaime, courthouses in free societies are intended to be neutral, both in fact and in appearance, and toimpart dignity to the judicial system both in form and in substance: 18.

We erect courthouses for a reason. They are a stage for public discourse, a neutral forum for the resolution of civil and criminalmatters. The unique setting that the courtroom provides "is itself an important element in the constitutional conception of trial,contributing a dignity essential to `the integrity of the trial' process." Estes, 381 U.S. at 561 (Warren, C.J., concurring)(quoting Craig, 331 U.S. at 377). The use of a space other than a courthouse for a criminal trial, particularly when that space is ajailhouse, takes a step away from those dignities.

We hold that the setting of Jaime's trial infringed upon his right to a fair and impartialtrial, and we remand for proceedings consistent with this opinion. [58] A situation somewhat more analogous to the present case arose in R. v. Pangman (2000), (MB KB), 144Man R (2d) 204, [2000] MJ No 125 (Man QB). The applicant requested a change of venue, claiming a violation of the right to a fair trialcontrary to ss. 7 and 11(

d) of the Charter on the basis of defects in an improvised courthouse that had been created for the specificpurpose of accommodating the trial. Thirty-five accused were charged with various offences, requiring the construction of a specialcourthouse. Justice Krindle described the circumstances leading to the creation of the courthouse: [6] There was, at the time of arrest, within the court space in the City of Winnipeg, no space large enough to provide for alengthy jury trial of 35 accused.

A trial of that magnitude involves not only seating for the accused, but for the security staff necessary todeal with 35 individuals who are being detained on gang and weapons related charges. In addition to providing for the accused and theirneeds, the courtroom would have to provide reasonable space for all the counsel involved in such a trial. It would have to provide thetechnology necessary for the computers and videos that are part of this trial.

And it would have to make reasonable provision, bothwithin the courtroom and reasonably adjacent to the courtroom, for a jury that would be sitting for what is estimated to be between sixmonths and a year. [7] Particularly because the accused had been detained, it was necessary for the Crown speedily to provide a facility for thetrial. Had the facility not been ready for occupancy quickly, the accused would have been entitled to a judicial stay of the proceedingsbecause their Charter rights to a speedy trial would have been breached. The spectre of Askov applications was at all times a real one.

Two accused entered into arrangements with the Crown in April of 1999 and one had charges against him stayed in July of 1999. Theremaining accused commenced their trial. [8] The province obtained a building at 1501 Chevrier Ave. in an industrial area of Winnipeg, extensively renovated the interiorof the building, and the trial of the accused actually commenced at that location in September of 1999. At the commencement of thetrial, 32 accused remained charged on the indictment. Since the commencement of the trial, the numbers have fallen considerably. Asof the date of this motion, 15 accused remain indicted.

The others have disposed of the charges against them. The trial of the 15proceeds, although not yet before a jury… [59] Justice Krindle described some of the issues that prompted the motion for a change of venue. The accused were alleged to bemembers of a predominantly aboriginal street gang. The arrests and prosecution had generated significant media attention, and theproceeding was being described as a test case for new criminal organization legislation, with public suggestions of racist motivation indeploying it against an aboriginal gang.

There was also public discussion of the facility that had been prepared: [10] …The political and social wisdom of spending millions of dollars on the renovations to the building at 1501 Chevrier was amajor focus of attention. The fact that the province was heading into an election no doubt contributed to the extent, if not the focus, ofthe attention. There were allegations that the investigation and prosecution were motivated by racism.

The CBC National Magazine rana program called “Indian Courthouse” in which the building at 1501 Chevrier was called the “Indian Courthouse” by an aboriginalMember of the Legislature. Part of the visual interest in the building was no doubt sustained by the fact that 1501 Chevrier is an oldmustard-seed cleaning plant, the exterior of which remains unchanged from its previous incarnation, notwithstanding the interiorrenovations. It is, from the outside, unlike any courthouse that I have ever seen and it is truly ugly.

The photograph of the seed-elevatorportion of the building, taken through the fencing surrounding the property, lends itself to repeated display. [11] Since the pre-trial motions have commenced, media attention has eased somewhat but still occurs sporadically. The guiltypleas and sentencings have been covered. The failures of the applications for judicial interim release have been discussed. Those pleas,sentencings and applications for release were dealt with at the Law Courts Building before judges other than the trial judge.

From timeto time, public expressions of concern were heard in the media about the length of time that the accused have been in custody… [60] The Crown in Pangman conceded that, theoretically, a courtroom could be configured in such a way as to violate an accused’sCharter rights, but denied that such a situation existed in that case. In the alternative, the Crown argued that the appropriate remedy wasnot a change of venue, but an order for renovations to the building.

In noting the inability to move the trial due to the number of accusedpersons and the lack of adequate alternate locations, Krindle J. stated: [13] Whether this is to be a trial of 35 individuals or a trial of 15 individuals, there is still no existing courtroom at the Law CourtsBuilding to which this trial could simply be moved. There exists no Queen’s Bench courtroom in which a jury trial involving more thanfour in-custody accused has ever taken place and there is no existing Queen’s Bench courtroom which is equipped to handle a jury trialof this magnitude.

There are Provincial Court docket courtrooms which, perhaps, are large enough that two of the largest could bemerged and renovated to accommodate the number of accused, counsel and the jury in this case, although, as I pointed out to the defencewho suggested that idea, I expect that the Chief Provincial Court Judge has other plans for her large docket courtrooms and might havesomething to say about giving up those courtrooms for a year or so. The only Queen’s Bench courtroom which the defence suggestedmight suffice would certainly require extensive renovations.

[14] As I mentioned earlier, frequently trial judges, in consultation with their Chief Justices and on a completely informal basis, can and do decide to move a trial from one courtroom to another, more suited courtroom, within the judicial centre. On occasion the Chief Provincial Judge has agreed, without formalities, to the use of one of her courtrooms for a particular Queen’s Bench trial of reasonably short duration.

Those informal options do not exist in this case because there is no courtroom in existence, in either the Queen’s Bench courthouse or the Provincial Court courthouse, to which this trial can be moved. Any move of the trial to another location within the City of Winnipeg would necessarily involve my ordering the government to undertake a substantial expenditure. [ 61 ] Justice Krindle went on to state that a lack of appropriate alternate facilities does not impact on the possibility that the available venue would violate an accused’s Charter rights. I agree.

The fact that the Mellor Courthouse was recently built to make jury trials practicable during the pandemic has no bearing on my decision as to whether its proximity to the HRP detachment has an unconstitutional effect. The issue is whether having a trial at the Mellor Courthouse infringes Mr.

Enns’s fair trial rights; the availability or unavailability of an alternate location is beside the point. [ 62 ] As to remedy, Justice Krindle set out the inquiry to be conducted: [15] The fact that there exists no present facility to which this trial can be moved, formally or informally, does not end the analysis, by any means. The fact that any move would necessitate a substantial financial commitment by the state does not end the analysis. If a trial at 1501 Chevrier is shown, on a balance of probabilities, to violate the Charter rights of the accused, then the matter of a remedy will have to be considered.

And if the remedy can be shown, on a balance of probabilities, to require the moving of the trial elsewhere, then that move must be undertaken, regardless of the fact that it will not be simple or inexpensive to do so. [16] Therefore, the first question to be resolved is a purely legal one: does conducting the trial of these accused at the location at 1501 Chevrier Ave. violate the ss. 7 , 10(

b) and 11(

d) Charter rights of the accused? If it does, the next question will involve determining the issue of the appropriate and just remedy. [ 63 ] In discussing defence complaints regarding the exterior of facility, Krindle J. said: [27] A physical aspect of 1501 Chevrier relating to security that is different from that at the Law Courts Building and that may convey an impression of “dangerousness” is the fence and gatehouse. There is a chain link fence around the perimeter of the property at 1501 Chevrier with a gatehouse at the front.

All persons – judge, counsel, media, witnesses, public, court staff - entering the property through the public entrance are required to obtain a pass from the attendant at the gatehouse, which pass alerts the guards inside to the specific area of the building to which the individual is permitted access. All persons entering sign for the pass and turn it in when they leave. No identification is required

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